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United States v. Burns

United States District Court, M.D. North Carolina

May 10, 2019




         This matter comes before the undersigned United States Magistrate Judge on an Application for an Order to Require Defendant Burns to Assist in the Execution of a Search Warrant pursuant to the All Writs Act (the “Application”) (1:18MJ307, Docket Entry 3).[1] For the reasons that follow, the undersigned Magistrate Judge will grant the Application.[2]


         On October 4, 2018, this Court (per the undersigned Magistrate Judge) issued a Search and Seizure Warrant (the “Warrant”) for a 2TB Hitachi Hard Drive, Serial No. YFGNBBTA (the “Device”). (1:18MJ307, Docket Entry 2.) “The [D]evice . . . is related to the investigation of Timothy Donovan Burns . . . .” (Id., Attach. A.) The Warrant authorizes the search of the Device for (and seizure from the Device of) specified “evidence of . . ., the fruits of . . ., or property designed or intended for use or which has been used as the means of committing . . . violations of Title 18, United States Code, §[] 2252A(a)(5)(B).” (Id., Attach. B; see also Id. (listing, as among items subject to seizure, “child pornography, ” “[r]ecords and information discussing or revealing sexual activity with or sexual interest in minors, ” “[r]ecords and information referencing or revealing the identity of individuals depicted in child pornography and the location depicted, ” and “[r]ecords and information referencing or revealing the trafficking of child pornography and those responsible”).)

         On December 17, 2018, a grand jury for this District indicted Burns for receiving and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) & (5)(B), respectively. (See 1:18CR492-1, Docket Entry 1 at 1-2.) The Indictment explicitly sought forfeiture of the Device, as “matter which contains . . . visual depiction[s described in Section 2252A and] . . . personal[ property] used or intended to be used to commit or promote the commission of [the charged] offense[s], . . . in accordance with Title 18, United States Code, Section 2253, [Federal] Rule [of Criminal Procedure] 32.2, . . . and Title 28, United States Code, Section 2461(c).” (See Id. at 2-3.)

         On February 8, 2019, pursuant to a written Plea Agreement (signed by Burns and filed on January 30, 2019) (1:18CR492-1, Docket Entry 11) and a written Factual Basis (filed on February 5, 2019) (1:18CR492-1, Docket Entry 12), Burns pleaded guilty to receiving child pornography (before United States District Judge Loretta C. Biggs). (See 1:18CR492-1, Docket Entry dated Feb. 8, 2019.) In his Plea Agreement, Burns acknowledged that:

1) “[b]y pleading guilty . . ., [he] knowingly waive[d] and g[a]ve[] up his constitutional right[] . . . not to be compelled to incriminate himself” (1:18CR492-1, Docket Entry 11 at 4);
2) he “[wa]s going to plead guilty . . . because he [wa]s, in fact, guilty” (id. at 5);
3) he “knowingly consent[ed] and agree[d] to forfeit to the United States all right, title, and interest in and to any and all visual depictions described in . . . Section 2252A, and any and all property, real or personal, used or intended to be used to commit or to promote the commission of the offense [of receiving child pornography]” (id. at 6);
4) “[t]he property to be forfeited include[d] . . . [the Device]” (id.; see also Id. at 7 (“knowingly and voluntarily waiv[ing] all constitutional . . . claims, defenses and challenges to the forfeiture of [the Device]”)); and
5) “[n]o agreements, representations, or understandings ha[d] been made between the parties in this case other than those which [we]re explicitly set forth in th[at] Plea Agreement, and none w[ould] be entered into unless executed in writing and signed by all the parties” (id. at 10).

         The Factual Basis for Burns's guilty plea establishes that:

1) law enforcement officers monitoring a computer-file-sharing network observed that someone using “IP address . . . [i]n January and March 2018 . . . requested pieces of child pornography files” (1:18CR492-1, Docket Entry 12 at 6);[3]
2) “records obtained from [an internet service provider] revealed that IP address resolved to ‘Don Burns' at his apartment in Kernersville, North Carolina” (id.);[4]
3) “[o]n March 14, 2018, [North Carolina State Bureau of Investigation Criminal Specialist (‘CS') Rodney] White and [a federal agent] traveled to Burns's apartment” (id. at 6-7);
4) “Burns answered the door and agreed to speak with the agents inside” (id. at 7);
5) “[u]pon entry, the agents observed a desktop computer in the living room connected to a bay of hard drives” (id.);
6) “Burns explained that he lived alone and . . . formerly worked as a computer programmer” (id.); .
7) “Burns admitted to using the [n]etwork [on which officers had observed his IP address requesting pieces of child pornography files]” (id.; see also Id. (“Burns stated that he had been using [that network] for a few months.”));
8) “[w]hen asked what he did with the child pornography files, Burns explained that he downloaded the files to a hard drive and then sorted through them, deleting the files he didn't want” (id. at 8; see also Id. at 8-9 (“Burns said that he preferred minor girls 15 to 16 years of age. . . . CS White asked Burns which hard drive he used to save the child pornography that he downloaded. In response, Burns explained that there were three hard drives connected to his desktop computer. The first contained the computer's operating system, the second was the location to which files were downloaded, and the third contained music. During the interview with the agents, Burns sometimes qualified his answers by stating ‘If I was doing it' and ‘I'm not saying I did it' and then smiling.” (internal ellipses omitted)));
9) “Burns denied using any type of encryption software to protect his files” (id. at 8);
10) “Burns gave CS White verbal consent to take [Burns's] computer and hard drives and examine them for child pornography” (id.; see also Id. at 9 (“Burns [also] executed a written consent . . . . With Burns's permission, CS ...

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